The panel has voted unanimously to deny the petition for rehearing. A judge in active service called for a vote on the suggestion for rehearing en banc. A majority did not favor rehearing en banc, and the petition therefore is denied.

Petitioner Griffith presented his constitutional claims to the Illinois courts, which rejected them without a majority opinion. People v. Griffith, 634 N.E.2d 1069 (Ill. 1994). Griffith's death sentence for murder was later commuted to a life sentence in prison. After exhausting his available remedies in post-conviction proceedings in the state courts, Griffith sought federal habeas relief. The district court denied relief on the ground that Griffith had filed his federal petition about two weeks too late under the federal habeas statute of limitations, 28 U.S.C. § 2244(d). The panel has affirmed, Griffith v. Rednour, 614 F.3d 328 (7th Cir. 2010), and a majority of the court has voted to deny rehearing en banc.

I respectfully dissent from the denial of rehearing en banc. The Illinois Supreme Court granted Griffith permission to file an otherwise-untimely petition for leave to appeal a denial of post-conviction relief because Griffith's lawyer was too ill to come to work. The panel held that the Illinois Supreme Court's decision to allow the filing did not toll the statute of limitations for filing a federal habeas corpus petition for the two weeks between the expiration of the filing deadline and the filing of Griffith's motion for leave to file the late petition.

Based on the Supreme Court's interpretation of the tolling provision in 28 U.S.C. § 2244(d)(2), I believe that this conclusion was wrong. The federal courts should give the state court's decision on timeliness the same effect the state courts did. Correcting this error deserves en banc consideration because the general problem-the proper calculation of the federal limitations period when a petitioner has missed a deadline in the state courts, but the state courts have excused the delay-is a recurring issue in the district courts and for us.

The problem is one of the intricate details arising from Congress's decision in 1996 to establish a one-year statute of limitations for seeking habeas corpus relief in federal court. See 28 U.S.C. § 2244(d)(1). That time is tolled for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). In this case, petitioner Griffith sought post-conviction relief in the Illinois state courts. As the panel opinion explains, the Illinois Appellate Court affirmed the denial of that relief on July 13, 2005. Griffith actually filed on August 1st a "notice of intent to file petition for leave to appeal," and under the rules then in effect, he then had until August 17th to file his petition for leave to appeal with the Illinois Supreme Court. Griffith missed that deadline. On September 1st, though, Griffith filed a petition for leave to appeal, along with a motion for leave to file that petition instanter. The motion explained that his lawyer in the state appellate public defender's office had been ill.

Over the state's objection, the Illinois Supreme Court granted Griffith's motion on September 13th. The court then considered Griffith's petition on the merits and denied it on December 1, 2005. Griffith filed his federal petition 364 days later, on November 30, 2006. Application of the one-year deadline in section 2244(d)(1) therefore depends on whether we treat Griffith's petition for leave to appeal as "pending" between the August 17th expiration of the time to file the petition and either his September 1st filing or the state court's September 13th grant of leave to file instanter.

The panel opinion concludes that there was nothing actually "pending" during that interim period, see 614 F.3d at 330, quoting and following Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000). The conclusion is certainly understandable. It is consistent with the reasoning that four dissenting justices of the Supreme Court found persuasive in Carey v. Saffold, 536 U.S. 214 (2002). But I believe the panel conclusion is wrong for three reasons:

-- First, the conclusion is inconsistent with the reasoning of the Supreme Court in Carey and its follow-up case, Evans v. Chavis, 546 U.S. 189 (2006), and more generally with the Supreme Court's approach to a closely-related question in Jimenez v. Quarterman, 129 S.Ct. 681 (2009).

-- Second, the panel conclusion produces a confusing solution that sets unnecessary traps for unwary petitioners and their lawyers.

-- Third, the panel conclusion winds up being over-protective of a state's interests when the state court has ...

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